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Assisted suicide; leave the law alone and let juries do their duty

Over at The Backbencher, I note a piece by Sam Woolfe which calls for the legalisation of euthanasia , which seems to be one of a series of articles pushing the British Humanist Association’s various agenda. After discussing the case of Mr Paul Lamb, who is seeking to change the law (presumably by judicial fiat), It concludes:

“from a liberal point of view, I think that if people have the freedom to choose how they live, they should also have the freedom to choose how they die. They are two sides of the same coin. One’s body and one’s life is one’s own property – it belongs to no-one else. If someone has made a rational and informed decision to end their life because their life is unbearable, they should not be prevented from ending it.”

If this was all the argument for euthanasia or ‘assisted suicide’ entailed, there would probably be little to dispute. However the above paragraph does not make this case, but rather for the act of suicide not to be criminalised, which is already the case. Assisted suicide by definition involves another person, and here the complications begin. I recognise that many libertarians have settled views in favour of euthanasia and assisted suicide, but I think that the foundations of such views are considerably less stable than they may at first seem.

The freedom to choose how you live (and also therefore, as claimed above, how you die) is usually stated with the, perhaps tautological, proviso that this holds as long as you do not infringe the equal right of anyone else. As such, although you have a right to kill yourself, you have no right to be assisted in this act, as this would mean that someone else can be forced to assist, which would infringe their rights, so the most we could say is that you have a right to seek assistance in killing yourself, no more than this, but even so, the person whose assistance is sought cannot be absolved from responsibility for the choice of action they take.

Much as the general sentiment leans one way in the case of someone like Mr Lamb, discussed in the Backbencher article, I expect it would lean quite the other way, if we were considering the following: an 18-year-old girl, ostensibly healthy, who has just failed her A levels and feels so distraught that she asserts the desire to die, a desire which her boyfriend actively assists her to fulfill. Perhaps he drives her to a suspension bridge and watches her jump. Perhaps he ties up the rope for her, sits back and watches her hang herself. Perhaps, even more extreme, he cuts her throat, waits for death, then calls an ambulance. Let us also suppose that in all three scenarios he produces incontrovertible evidence that the dead girl stated her desire to end her life.

If there is a right to assisted suicide, based on a fundamental individual right, then in none of the three cases would any crime have been committed. What contradicts such a view is the notion that individual liberty is founded on an inalienable property in oneself, and as this property in inalienable, it is not transferable to another or capable of being repudiated, and thus the boyfriend cannot escape the charge of manslaughter, irrespective of the girlfriend’s opinion.

The committed euthanasiac will wave away this somewhat overwrought example. “We are not concerned with such matters, but with those who are sick and in pain and have no objective reason to prolong their miserable lives”, such as apparently Mr Lamb. So it seems there is a double requirement: first that the person wishes to die, and secondly that there is an objective determination that their life is indeed not worth living.

At which point we arrive at the necessity of some kind of third party to sanction a proposed act of assisted suicide, most likely a doctor or a panel of doctors. Here we will install the mechanisms and protocols to ensure that only the right people are dispatched for the right reasons. So, the change of law can be seen as transferring such necessary consideration of the individual case from a post-facto jury in a courtroom, to a presumptive ‘death panel’ (to use an already-coined phrase), operating outside, if not above, the common law.

One of the points stressed in the article is the apparently overwhelming support for such a change in the law, which polls indicate to be over 80%. If this is so, a change in the law should not even be necessary. The criminal law requires that someone be found guilty by a jury of his peers. The jury has the power to acquit, even in contradiction of the evidence. In other words, even if it thinks the defendant did what he’s accused of, it can still find him not guilty. For this reason the jury system represents the most fundamental of our traditional defences against tyranny.

This power of the jury to judge the law as well as the crime is very much underplayed by lawyers and government types, for obvious reasons. However, if juries understood this, and if the polls are correct, then the average jury will contain at least 9 members who believe that no crime has taken place, and conviction would be impossible. Under such circumstances, the Crown Prosecution Service would have to think very hard about which cases they present. This is how the law should proceed with such a thorny matter, with reform coming, not from positivistic actions by legislators, but through the discovery process of its operation.

The barriers to this are twofold: firstly; the ignorance of the public as to the true power of the jury to render justice and not merely follow the law as pronounced from on high: secondly; the dangerous view, widespread amongst the intellectual establishment that laws can be created and changed subject to the whim of legislators. I think it better that the general prohibition against the taking of life stands, and the rare, unhappy cases where it may be an act of mercy – i.e., an arguably moral act –are assessed by a jury, fully informed of its duties, than the taking of life becomes a matter of administrative procedure.

8 comments for “Assisted suicide; leave the law alone and let juries do their duty”

At the risk of tomorrow’s headlines screaming “Split at the Head of Pro Liberty Shocker”, I have to say that I don’t necessarily agree with your 18 year old and boyfriend scenario. They key to this is not the apparent futility of a healthy person wishing to take their life; it’s their mental state. The onus needs to be on the prosecution to show that the assitor should have reasonably known that the suicidee was in a state of temporary mental distress and therefore unable to give informed consent to the assistance of her suicide.

On the issue of Jury Nullification, where juries go against the law and judge’s directions, this is very rare as juries can not be told of the possibility by defence barristers. This is the law and would cause a case to have to be retried and the disbarring of the barrister. I’ve often considered that if I was relying on the prospect of Jury Nullification, I’d sack my barrister just before the end of their summing up and complete the summing up myself and introduce the option to the jury myself.

Due to this inability of defence barristers to be able to inform juries of their rights, the only major case of jury nullification I can recall is the David Shayler Spycatcher book case. As such, I don’t think it can be relied upon to see that justice is done in cases of assisted suicide, unless the inability to inform the jury of the possibility is removed.

Richard Carey

May 9, 2013 at 10:44 pm

“The onus needs to be on the prosecution to show that the assitor should have reasonably known that the suicidee was in a state of temporary mental distress”

Not as the law stands AFAIK and as I hope it will continue to stand, under which the boyfriend would likely be convicted of manslaughter in the second two scenarios and possibly the first also – and rightly so, in my judgement.

As for juries knowing that they can acquit in the face of the evidence, it really comes down to a general ignorance which need not be remedied during a court hearing but rather restored to its place as common knowledge.

As for common knowledge, I despair at the people who end up on juries. The Q&A in the Vicky Pryce case being a case in point.

Richard Carey

May 10, 2013 at 1:21 am

I need to go back to this (considering the 18 year old / boyfriend scenario:

“They key to this is not the apparent futility of a healthy person wishing to take their life; it’s their mental state”

I would say that prior to either consideration, the key is the inalienable property one has in oneself. This is certainly violated where the action of another person directly causes someone’s death, such as example 3. Where the action of another person merely enables someone to take their own life, and the final act is taken by the individual who dies, which would be the case with the first two examples, then it could be argued that no violation of inalienable property has occurred, but the argument would need to assert that the person who died was of sound mind, because if they were not, then the assistant’s acts which enable the suicide would be grossly negligent at the very least, in the same way as giving a three-year-old a cigarette lighter and a stick of dynamite. Whatever the case, put it to a jury. We can’t have people bumping off other people, claiming it was what they wanted and not facing proper consideration of the facts.

As for the Vicky Pryce jury, I noted at the time, it’s error was in asking the judge! and contrary to every other commenter I read or heard on the matter I say the answer to their question was ‘yes’, for reasons related to the arguments I make above about juries and perverse verdicts.http://libertarianhome.co.uk/2013/03/in-defence-of-huhne/

It boils down to the definition of inalienable rights. Some say that such rights can never be transferred. Other’s say that they can be transferred but only with the informed and freely-given consent of their holder. I’m in the latter category on the basis that if you can’t transfer property you don’t actually own it. People can disagree on the ownership of various types of property (land, money etc), but one thing almost everyone agrees on, even the socialists, is that you own your own life and your own body.

A coroner would be involved regardless. To assist in a suicide will need to be established, for someone has died at the hand of another and we all owe it to the one who can no longer speak to ensure that there was no foul play.

IMHO, to assist should not be a crime, but due process with the utmost rigour should be followed.